Institutes of Divine Jurisprudence, with Selections from Foundations of the Law of Nature and Nations. Christian Thomasius

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СКАЧАТЬ a perverse, instinctive self-love, rather than a desire to find out the truth. And in order to set you an example to follow, and so that you do not think it shameful to abandon your previous opinion after you have been taught something better, I will also indicate some passages which I later believed required some correction. I have already pointed out most of these in the discourse itself. In chapter 1, §53, page 18, the last words are to be deleted: “although the locomotive power of beasts differs from this, since it is devoid of thought.” In the same chapter 1, §75 as a whole is to be corrected as follows: The actions somebody performs under the influence of great fear, such as a promise, are sometimes imputed and sometimes not imputed, whether the action is contrary to the laws or not. This will become clear from the full discussion in the chapter on the duty of man concerning promises. In chapter 2, §116, you should correct the words contained there as follows: “Moreover we believe that the use of this distinction is adequate, because affirmative precepts of divine law always allow for an exception in cases of supreme necessity, while negative precepts do not.” In the same chapter the paragraphs 127, 128, 129, and 130 should

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      be deleted. In chapter 4, §59, write as follows: “And to be precise, the pleasure of the senses will be very rare and practically nonexistent outside society”; and remove the subsequent words of this paragraph, “Through induction …” until the end. In book II, chapter 1, §164, following the words: “I do not think so,” put these in their place after deleting the others: “For the law of nature, which forbids killing a person, has itself a tacit exception of necessity, whenever this does not principally have the violation of the law as its object and there is no means of evading it by a natural instinct, as is explained in the examples listed.” Thus, the later paragraphs 165, 166, 167, 168, 169, 170, 171, 172, and 173 should be removed.¹⁰⁴

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BOOK I

CHAPTER I

       On Jurisprudence in General

      §1. The term jurisprudence involves two concepts, prudence and right [jus].

      §2. There is no better way for us to understand prudence than by going over the different faculties [habitus]¹ in a little more detail.

      §3. A faculty is either infused, that is, one which man possesses without previous knowledge, or acquired, for which labor and effort are necessary.

      §4. The acquired is gained either through supernatural or through natural powers.

      §5. The faculty which is acquired through natural powers is either intellectual, if it is based in the intellect and is acquired through acts of the intellect, that is, affirmation and denial, or it is voluntary, if it is based in

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      the will and is acquired through acts of the will, that is, the desire for or aversion to something.²

      §6. The intellectual faculty has as its object either principles, which may be theoretical or practical, in which case it is called understanding, or conclusions from these.

      §7. In the latter case, concerning conclusions, this faculty is either theoretical and aims to understand the creator and creation, or practical and aims to understand human actions.

      §8. The theoretical has as its subject either being as such and is called ontology (nowadays usually metaphysics), or certain species of being.

      §9. And this ontology either considers the creator—this is called wisdom [sapientia], and once used to be called metaphysics, but today is termed the first part of pneumatics —or it considers corporeal creatures and is called science.

      §10. Science, however, examines corporeal creatures either with respect to their essence and qualities, which is what physics does, or with respect to quantity, which is the subject of mathematics.

      §11. We now turn to the practical faculty. Its synonym is prudence, which takes on different names according to the diversity of human activities. If these actions are those of people living in a civil society, it is called political prudence; if they are the actions of those living in domestic society, it is called economic prudence.

      §12. Each of the two is concerned with future and past actions. The former is advisory in a broad sense; the latter is judicial in the broadest sense.

      §13. Advisory prudence is occupied either with one’s own actions or with those of others.

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      §14. And it is occupied with the actions of superiors, or equals, or inferiors.

      §15. The last of these is given the special name legislative prudence, which is the noblest part of jurisprudence in a broad sense. The other forms retain the title of advisory prudence, and that part which advises the superior in legislating or acting according to the norm of the divine laws is the other part of jurisprudence in the broad sense.

      §16. Moreover, the actions of men, both future and past, are honest, that is, they conform to a law and are predicated of man insofar as he is rational; or they are pleasant, that is, they delight the external senses and concern man considered as an animal; or they are useful, that is, they are directed to the preservation of the individual. In the last case man is considered as a living physical being.

      §17. That prudence which is concerned with honest actions in general is jurisprudence in the broad sense, and that which is concerned in particular with the honest actions of others in the past is judicial prudence in the strict sense, or jurisprudence in the strict sense, or the third part of jurisprudence in the broad sense.

      §18. But that prudence which has as its object the pleasant or useful actions of men is prudence in the sense of skill [ars].

      §19. If man directs these, as he should, toward honest actions, this is good and he remains prudent; if he does not do so, he is said to be astute or cunning.

      §20. If he is obviously without prudence in skill, he is termed imprudent.³

      §21. The faculty of the will remains. This is acquired by actions that are prescribed by law and in that case is a moral virtue, or by actions prohibited

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      by law, when it is called a moral vice, or, finally, by actions permitted by law, when it is nothing more than skill.

      §22. These points had to be presented in a little more detail, because the common doctrine of the Peripatetics on the division of the faculties and the various kinds of intellectual virtues is full of countless mistakes, which anyone who has compared their teachings with what has been said so far will easily detect.

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